Who will hold Auckland Council Officers accountable for breaking the law?
Auckland Council is like a citizen. It is required to adhere to the same laws that govern our nation and every person in it.
Whilst Council is afforded certain rights and functions through legislation that empower it, that power is not unlimited.
In fact it is very limited.
Those limitations are the essential boundaries specifically created in law to protect people and property from Council. In doing this the law ensures that Councils and their delegates (council officers) are bound in their duties.
Without which we would experience law-less Councils and authoritarianism.
So what happens to Councils and their officers when they break the law?
And do they break the law?
The answer is that Councils do break the law and more regularly than we think. Councils get away with breaking the law because they are not policed, except to be tested by specialist Courts such as the Environment Court.
In 2010 Auckland Council embarked on a year and a half long process to prepare a strategic document we all know as the Auckland Plan.
Launched with fanfare the plan was launched by Mayor Brown as the grand vision for Auckland. The document to guide the growth of Auckland through to the year 2040.
In preparation of that plan did Auckland Council break the law?
Yes it did.
The Local Government (Auckland Council) Act 2009 sets clearly the functions. Section 80 includes the following:
(4) The spatial plan must -
(c) provide an evidential base to support decision making for Auckland, including evidence of trends, opportunities, and constraints within Auckland;
Did Auckland Council planners prepare any evidential base to support their decisions?
No they did not.
After printing of the draft Auckland Plan an attempt to produce some spherics of an evidential basis was provided. But it was poorly prepared, erroneous and realistically failed to meet any professional standards.
Much of the content was focused on theory. It did not meet the industry benchmarks for the related disciplines.
Much of the flaws were exposed within months by outsiders.
For example Studio D4/Jasmax FGA Study proved emphatically that Council had no way of ever achieving the density targets of the plan. Submitted evidence to Council proved this.
Reports and analysis in Council hands were all subsequently buried and ignored and the Auckland Plan has been produced with no regard to any legitimate evidence because Council planners and the Mayor wanted their plan and vision implemented. It was as such pushed through regardless of the erroneous basis to it and so it does not meet the requirement of the Act.
In doing that the Council has chosen to ignore the rule of law in favour of its own preferences, plans and ideas and despite no empirical backbone.
It is important to focus on the emphasis in that provision of the Act – support – and – an evidential base.
Any professional knows what constitutes an evidential base. It is credible and accurate.
Anyone who has been before the Court would know how that is tested.
Any RMA lawyer will tell you the Auckland Plan has been produced with no evidential base.
Moving on to the Unitary Plan the Council is again rushing to produce a document that is worrying lawyers, civil libertarians and anyone with half a brain.
Because it too is being produced without an empirical base and with scant regard to the law.
The Resource Management Act carries the provisions that enable the Unitary Plan.
It is fair to say that the powers and functions of Auckland Council (and Councils generally) are the most tested and defined aspects of the RMA. As such there can be no confusion as to what Council can and can’t do, and what is required of them in performing their functions.
So what about the reports, analysis and cost benefit analysis that’s required under section 32 of the RMA?
That section of the RMA says:
(4) For the purposes of the examinations referred to in subsections (3) and (3A), an evaluation must take into account—
(a)the benefits and costs of policies, rules, or other methods; and
(b)the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods.
(5) The person required to carry out an evaluation under subsection (1) must prepare a report summarising the evaluation and giving reasons for that evaluation.
(6) The report must be available for public inspection at the same time as the document to which the report relates is publicly notified or the regulation is made.
So now that the draft Unitary Plan is out – where are the required reports and analysis to support it?
Why have no reports and analysis been provided to date?
Have they been done at all?
Or have Council officers yet again ignored the rule of law by not preparing anything and simply writing the rules they way they want?
In preparing rules the rules need a basis to justify and direct what purpose they exist for. So the analysis and reports come first. Not last.
In a time where apathy prevails its hardly a surprise that Council officers are trying it on. But that doesn’t make it right.
If you or I broke that law we would be held accountable. Probably subject to prosecution and most likely fined or jailed.
So when a Council planning officer – a person who has the power to cause substantial effect on property, property rights and values (that cascade into effects on people), force change and direct how we live goes about their role and ignore the law ….. should they not too be held to account?
Our politicians should hold these people to account, censure them and reassure the public that the Council respects and upholds the law by proving it.
Lyin’ Len Brown is permitting and allowing his staff to break the law in the name of proffering his own plan. Len has not only supported, but turned a blind eye to the unlawful actions of his Council.